EXHIBIT 10.20
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (the "Agreement") is made this 10th day of
November, 1997, by and between Condor Worldwide, Ltd., with offices located 000
Xxx Xxxxxx, Xxxxxx, Xxxxxxx ("Consultant"), and IPVoice Communbications, Inc. a
Delaware corporation with offices located at 00000 Xxxx Xxxxxxx Xxxxx.
Xxxxxxxxx, Xxxxxxxx, 00000 ("Client").
RECITALS
A. Consultant, and its network of professionals, is experienced in providing
assistance with international telecommunication sales and marketing
management, and other related corporate advisory services and assistance to
telecommunications business organizations, institutions and firms;
B. Client is planning on becoming a publicly traded corporation;
C. Client wishes to engage the services of Consultant and its network of
professionals to include Client within the select and limited group of
clients for which Consultant and the professionals provide various business
managerial and consulting services;
D. Consultant agrees to be retained for the foregoing purposes for which
Consultant has the requisite skills, abilities and qualifications, subject
to the terms and conditions provided herein.
AGREEMENT
NOW THEREFORE, in consideration of the mutual promises, covenants and
agreements contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are expressly acknowledged, Client and
Consultant agree as follows:
1. Recitals
The foregoing recitals are true and correct and are incorporated herein by this
reference.
2. Engagement of Consultant
Client hereby appoints Consultant and Consultant's professionals (Consultant's
Professionals") to be its business and managerial, and advisor and hereby retain
and employ Consultant, pursuant to the terms and conditions of the Agreement.
Consultant accepts such appointment and agrees to perform the services pursuant
to the terms and conditions of the Agreement.
3. Terms of Agreement
This Agreement shall have an initial term of six years (the "Initial Term")
commencing February 10, 1998 and shall not extend beyond the Initial Term unless
the parties enter into a separate and independent written agreement. The parties
agree not to terminate this Agreement pursuant to this section unreasonably or
in bad faith.
4. Duties of the Consultant
Condor Worldwide, Ltd. Client retains Consultant to assist Client with Client's
international acquisitions and mergers by providing the services of Consultants
and other professionals, such services to include the review of present sales
and marketing management and the recommendation of means of expanding Client's
customer base and otherwise improving Client's sales and marketing strategy and
corporate image generally. Specifically, Consultant agrees to provide the
following services related to sales, marketing and public relations:
A. acting as advisor to Client with respect to international sales
management, corporate activities, such as planning, designing,
developing, organizing, writing and distributing sales materials and
information;
B. receive, manage, and respond to all incoming sales inquiries from or
pertaining to Client's international customers;
C. assist with all sales management meetings including the preparation of
agendas, documents, materials, and presentations to be presented at
such meetings;
D. assist in the planning, preparation and distribution of marketing
materials, news releases, and related matters pertaining to marketing
of IPVoice products;
E. assist Client to make Client and Client's management, products and
activities known to appropriate international customers, and to seek
out new business acquisitions, which are consistent with Client's
strategic growth plan;
The entirety of the services to be provided by Consultant pursuant to this
Subsection 4.A, shall hereinafter collectively be referred to as the "Condor
Services".
5. Duties of the Client
(a) On a regular and timely basis, Client shall provide Consultant and
Consultant's designees with all approved data and pertinent information about
Client and Client's management, products and operations. Client shall advise
Consultant of any facts which would affect the accuracy of any prior data or
information provided Consultant or Consultant's Professionals by Client.
(b) Client shall use its best efforts to promptly provide Consultant and
Consultant's Professions with full and complete copies of all product and
marketing literature and details; and copies of all product/service brochures,
sales materials, etc.
6. Representation and Indemnification
(a) Client shall be deemed to make a continuing representation of the accuracy
of any and all material facts, information and data which Client supplies to
Consultant or Consultant's Professionals, and Client acknowledges its awareness
that Consultant and Consultant's Professional will rely on such continuing
representation in disseminating such information and otherwise performing its
technical functions.
(b) Consultant, in the absence of written notice from Client, may rely upon the
continuing occurrence of material information and data supplied by Client.
(c) Client hereby agrees to indemnify Consultant against, and to hold Consultant
harmless from any claims, demands, suits, loss, damages, including legal fees
and expenses arising from Consultant's reliance upon the occurrence and
continuing accuracy of such facts, material, information and data, if and only
if, the facts, materials, information and data was provided to Consultant by
Client.
7. Compensation
A. Condor Services. For Condor services rendered, Client shall pay Consultant
and/or Consultant's designee(s) in the form of free trading common stock of
Client (the "Common Stock"" issued pursuant to Rule 504 or registered pursuant
to a Form S-8 registration statement or similar registration statement, as
follows:
B. Upon the listing of IpVoice on the over-the-counter bulletin board (OTC: BB).
Client shall convey or cause to be conveyed to Consultant or Consultant's
designee(s) six hundred thousand (600,000) shares of Client's free trading
common stock;
C. Client shall convey or cause to be conveyed to Consultant or Consultant's
designee(s) monthly compensation comprised of five thousand (5,000) dollars,
such payments to be made on or before the first (1st) calendar day of each,
month commencing December 1997.
The Common Stock to be issued to Consultant and/or Consultant's designee(s)
pursuant to this Subsection 7.A., shall be duly issued, fully paid and
nonassessable upon its conveyance to Consultant and or Consultant's designee(s).
If Client should request Consultant to perform othjer services not included in
the Services listed in Section 4 herein. Client shall compensate Consultant or
consultant's designee(s) as may be agreed to by the parties in connection with
those specific services.
8. Best Efforts Basis
The parties agree that they individually and separately shall at all times
faithfully and to the best of their experience, ability, and talents, perform
all the duties that may be required of and from each other pursuant to the terms
of this Agreement. Consultant does not guarantee or warrant that its efforts
shall have any impact on Client's business or that any subsequent financial
improvement shall have any impact on Client's business or that any subsequent
financial improvement shall result from Consultant's efforts.
9. Client's Right to Approve Consultant's Actions
Client expressly retains the right to approve, in its sole discretion, the sales
and marketing services provided by Consultant that involves Client, including
with limitation, all sales activities and marketing materials. Consultant and
Client mutually agree that Consultant is not authorized to enter into agreements
on behalf of Client. Client agrees not to withhold its approval pursuant to this
section unreasonably.
10. Costs and Expenses
Consultant shall be responsible for paying all daily and ordinary expenses
incurred during and in relation to Consultant's performance under this Agreement
including, but not limited to, ordinary phone, fax, delivery, and copying
expenses. Client agrees to pay for all extraordinary expenses, if any, incurred
by Consultant in relation to Consultant's performance under this Agreement,
including without limitation, long distance travel expenses for any trips
exceeding fifty (50) miles taken on behalf of Client, and printing costs;
provided that Consultant must obtain Client's written approval of all such costs
and expenditures prior to incurring them.
11. Consultant is Not an Agent
Consultant obligations under this Agreement consist solely of the Consulting
Services described herein. In no event shall Consultant be considered to act as
the agent of Client or otherwise represent or bind Client. For the purposes of
this Agreement, Consultant is an independent contractor. All final decisions
with respect to acts of Client or its affiliate, whether or not made pursuant to
or in reliance on information or advice furnished by Consultant hereunder, shall
be those of Client or such affiliated and Consultant shall under no
circumstances be liable for any expense incurred or loss suffered by Client as a
consequence of such action or decisions.
12. Non-Exclusive Services
Client acknowledges that Consultant is currently providing services of the same
or similar nature to other parties and Client agrees that Consultant is not
prevented or barred from rendering services of the same nature or a similar
nature to any other individual or entity. Consultant understands and agrees that
Client shall not be prevented or barred from retaining other persons or entities
to provide services of the same or similar nature as those provided by
Consultant. Consultant shall advise Client of Consultant's positions with
respect to any activity, employment, business arrangement or potential conflict
of interest which may be relevant to this Agreement.
13. Non-Circumvention of Consultant
Client agrees, represents and warrants hereby that it will not circumvent
Consultant with respect to any prospective customer introduced by Consultant to
Client nor with respect to any transaction, merger, acquisition, or other
business opportunity proposed by, assisted with or otherwise promoted by
Consultant for the benefit of Client pursuant to the terms of this Agreement.
14. Miscellaneous
A. Authority. The execution and performance of this Agreement has been duly
authorized by all requisite corporate action. This Agreement is a valid and
binding obligation of the parties hereto.
B. Amendment. This Agreement may be amended or modified at any time and in any
manner only by an instrument in writing executed by the parties hereto.
C. Waiver. All the rights and remedies of either party under this Agreement are
cumulative and not exclusive of any other rights and remedies provided by law.
No delay or failure on the part of either party in the exercise of any right or
remedy arising from a breach of this Agreement shall operate as a waiver of any
subsequent right or remedy arising from a subsequent breach of this Agreement.
The consent of any party, where required hereunder, to any act or occurrence
shall not be deemed to be a consent to any other act or occurrence.
D. Assignment. Neither this Agreement nor any right created by it shall be
assignable by either party without the prior written consent of the other.
Nothing in this Agreement, expressed or implied, is intended to confer upon any
person, other than the parties and their successors, any rights or remedies
under this Agreement.
E. Notices. Any notice or other communication required or permitted by this
Agreement must be in writing and shall be deemed to be properly given when
delivered in person to an officer of the other party, when deposited in the
mails for transmittal by certified or registered mail, postage prepaid, when
deposited with a courier such as Federal Express or the like, or when sent by
facsimile transmission with a confirming copy by first class mail, provided that
such communication is addressed:
In the Case of Consultant to: Condor Worldwide, Ltd.
Attn: Xxxxx X. Xxxxxx
000 Xxx Xxxxxx
Xxxxxx, Xxxxxxx
In the case of Client: Xxxxxxx Will
President
IPVoice Communications, Inc.
00000 Xxxx Xxxxxxx Xxxxx
Xxxxxx Xxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Or to such other person or address designated by the parties hereto to receive
notice. Any such notice shall be deemed received the earlier of actual receipt
or five (5) business days following deposit of the same.
F. Headings and Captions. The headings of paragraphs are included solely for
convenience. If a conflict exists between any heading and the text of this
Agreement, the text shall control.
G. Entire Agreement. This instrument and the exhibits hereto contain the entire
Agreement between the parties with respect to the transaction contemplated by
the Agreement and no other prior written or oral statement or agreement shall be
recognized or enforced. This agreement may be executed in any number of
counterparts but the aggregate of the counterparts together constitute only one
and the same instrument.
H. Effect of Partial Invalidity. In the event that any one or more of the
provisions contained in this Agreement shall for any reason be held to be
invalid, illegal, or unenforceable in any respect, such invalidity, illegality
of unenforceability shall not affect any other provisions of this Agreement, but
this Agreement shall be construed as if it never contained any such invalid,
illegal or unenforceable provisions.
I. Controlling Law. The validity, interpretation, and performance of this
Agreement shall be controlled by and construed under the laws of the State of
Delaware. Any legal action brought hereunder shall be properly commenced and
venue shall lie only in a state or federal court of competent jurisdiction
located in the State of Delaware.
J. Attorney's Fees. If any action at law or in equity, including an action for
declaratory relief, is brought to enforce or interpret the provisions of this
Agreement, the prevailing party shall be entitled to recover actual attorneys
fees from the other party. The attorneys fees may be ordered by the court in the
trial of any action described in this paragraph or may be enforced in a separate
action brought for determining attorney's fees.
K. Time is of the Essence. Time is of the essence of this Agreement and of each
and every provision hereof.
L. Mutual Cooperation. The parties hereto shall cooperate with each other to
achieve the purpose of this Agreement, and shall execute such other and further
documents and take such other and further actions as may be necessary or
convenient to effect the transactions described herein.
M. Further Actions. At any time, and from time to time, each party hereto agrees
to take actions and to execute and deliver documents, at its own expense, as may
be reasonably necessary to effectuate the purposes of this Agreement.
N. Indemnification. Client and Consultant agree to indemnify, defend and hold
each other harmless from and against all demands, claims, actions, actions,
losses, damages, liabilities, costs and expenses, including without limitation,
interest, penalties and attorneys fees and expenses asserted against or imposed
or incurred by either party by reason of or resulting from a breach of any
representation, warranty, covenant condition or agreement of the other party to
this Agreement.
O. Facsimile Counterparts. If a party signs this Agreement and transmits an
electronic facsimile of the signature page to the other party, the party who
receives the transmission may rely upon the electronic facsimile as a signed
original of this Agreement.
P. Confidentiality. Client and Consultant agree that all non-public information
furnished and to be furnished pursuant to this Agreement shall be held in strict
confidence and shall not without prior written consent of the respective party,
be disclosed in any manner whatsoever, in whole or in part, and shall not be
used by the other party for any purpose other than fulfilling the terms of this
Agreement detailed herein. The term "information" shall include, but is not
limited to, all documents, contracts, memoranda, customer names and lists,
analyses, compilations, data studies, financial data and other materials and
information exchanged hereunder.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date(s) written below.
Condor Worldwide, Ltd.
By: /s/ Xxxxx X. Xxxxxx Date: 10th November 1997.
-----------------------------
Name: Xxxxx X. Xxxxxx
Title: Chairman and Chief Executive Officer
IPVoice Communications, Inc.
By: /s/ Xxxxxxx X. Will Date: 11/10/1997
-----------------------------
Name: Xxxxxxx X. Will
Title: President and Chief Operating Officer
AMENDMENT
THIS AMENDMENT dated the 29th day of July 1998, by and between IPVoice
Communications, Inc., a Nevada Corporation with offices at 0000 Xxxxx
Xxxxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxx 000000 ("Client") and Condor
Worldwide, Ltd., with offices located at 000 Xxx Xxxxxx, Xxxxxx, Xxxxxxx
("Consultant"), stipulates the following:
Consultant agrees to waive all rights, title and interest in item 7(A)
(illegible) of THE CONSULTING AGREEMENT made on the 10th day of November 1997,
which states:
"Upon the listing of IPVoice on the over-the-counter bulletin board,
(OTC:BB), Client shall convey or cause to be conveyed to Consultant or
Consultant's designee(s) six hundred thousand (600,000) shares of Client's free
trading common stock."
Consultant makes no claim for such shares.
CONDOR WORLDWIDE, LTD IPVoice Communications, Inc.
By:/s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxxx X. Will
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Xxxxx X. Xxxxxx Xxxxxxx X./ Will
President
